Now What?

05.11.129:23 AM ET

Gay Marriage’s Murky Constitutional Question

Gay marriage’s strange politics have pitted Democrats and Republicans on the opposite side of the constitutional right vs. states’ rights. John Avlon talks to a legal expert about how the issue could proceed.

It’s a role reversal that reflects the outcome-based, situational ethics beneath many supposedly principled ideological and partisan divides. The more transcendent truths are found in the traditionalism of conservatives and the progressivism of liberals, for better or worse.

Romney’s reversal from backing “full equality” for gays and lesbians back in 2002-era Massachusetts to his embrace of a Federal Marriage Amendment today is striking even by his standards—because few Republicans not running for president have advocated resuscitating that bad idea from Bush-Cheney 2004. Instead, some of the architects of that original plan have been busy apologizing for it in the intervening years. Dick Cheney supports the freedom to marry. And federalism was the argument hotly advanced by the Tea Party against health-care reform.

But Obama’s evolution to supporting marriage equality comes with its own irony—namely because while he said he personally supports gay marriage, he still believes it should be left for individual states to decide. States’ rights were, of course, once the high-minded defense for slavery and segregation. But that caveat was necessary for the president to soften the assertion politically, at least until the election is over and the Supreme Court decides to take up the case.

Both candidates’ decisions were the result of politics—party politics in Romney’s case and national politics in Obama’s case. And to pull back the veil on this bit of Kabuki theater, I called Noah Feldman, professor at Harvard Law and author of Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices.

“A constitutional amendment is the last refuge of people who think they’re going to lose in the Supreme Court.”

“A constitutional amendment is the last refuge of people who think they're going to lose in the Supreme Court,” explained Feldman. “The analogy would be someone who says, after Roe v. Wade, we need a federal constitutional amendment prohibiting abortion, because there’s no other way to beat the Supreme Court.”

But on the other side, “if and when the Supreme Court does take up the issue, the Obama administration—after Obama said what he said—is going to have to write an amicus brief saying that there is a fundamental constitutional right to gay marriage. There is still one more notch for him to evolve,” said Feldman.

“He’s now evolved to a point where he says he thinks it’s morally right to let gay people marry. But he hasn’t yet said it’s constitutionally obligatory, right? Those are not the same thing. There are many things I believe are morally right but that I don’t believe are constitutionally obligatory. So he’s got still one more notch to turn on his evolutionary belt. Because every realistic observer would say, ‘Of course they’re going to file that amicus brief, because they’re not going want to go down the wrong side of history over this.’ Luckily for them, they’re not going to have to file that amicus brief before the presidential election.”

As we saw most recently in the aftermath of the Supreme Court health-care reform hearings, condemnations of judicial activism also largely seem to reflect situational ethics rather than deep-seated principles. It’s largely just a question of whose ox is getting gored.

“Liberals think it would be judicial activism to strike down the health-care bill. Conservatives think it would be judicial activism to create a federal constitutional right to gay marriage,” Feldman said. “There is an objective definition of judicial activism, but nobody ever uses it. Most people think judicial activism is when the Supreme Court does things that they don’t want them to do.”